This is the third article in a series outlining new employment laws for 2018. Today we are looking at discrimination, harassment and retaliation protections. It seems as though a day cannot go by without another case of sexual harassment in the news. Make sure your business isn’t making those kinds of headlines.

Several new laws expand employee protections for 2018. Many of these laws focus on gender equality and gender identity/gender expression protections.

California employers with 50 or more employees must provide supervisors with two hours of sexual harassment prevention training every two years.

Under SB 396, covered employers will have to make sure that any mandatory training course they use also discusses harassment based on gender identity, gender expression and sexual orientation. The training content must include practical examples intended to address these types of harassment.

SB 396 also requires employers to display a poster on transgender rights that the Department of Fair Employment and Housing will develop.

Harassment Prevention Training: Farm Labor Contractors

SB 295 affects the sexual harassment prevention training that farm labor contractors must provide in order to receive a farm labor contractor's license. Contractors must now provide training in the language understood by the employee (or interpret into that language). Contractors applying for license renewal also must provide the Labor Commissioner with a list of all harassment prevention training materials and resources used and the total number of individuals trained.

Failure to follow the farm labor contractor training requirements will now be a Labor Code violation; a penalty of $100 for each violation may be assessed by the Labor Commissioner.

Gender identification: Female, Male or Nonbinary

With the signing of SB 179, California became the first state in the nation to allow residents to choose from three equally recognized gender options — female, male or nonbinary — on state-issued identification cards, birth certificates and driver’s licenses. (Oregon recognizes the nonbinary gender marker solely on driver’s licenses.)

For changes to birth certificates, the law is effective on September 1, 2018. For changes to driver’s licenses, the law is effective January 1, 2019.

The bill also makes it easier for individuals to change their gender on legal documents. Individuals will no longer have to show that they have undergone “clinically appropriate treatment.” Instead, an individual can make the legal gender change by attesting, under penalty of perjury, that the request is to conform the person’s legal gender to the person’s gender identity and not for a fraudulent purpose. This portion of the bill is effective September 1, 2018.

Also remember that FEHA transgender regulations from earlier this year require employers to honor an employee’s request to be identified by a preferred gender, name or pronoun, including gender-neutral pronouns.

Fair Pay Act Expansion

AB 46 extends California’s Fair Pay Act — which prohibits wage discrimination on the basis of gender, race and ethnicity — to cover public employers; existing law only covers private employers. While public employers will now be covered, the Labor Code provision that makes willful violation of the Fair Pay Act a misdemeanor only applies to a private employer, not a public employer.

Data Collection: Sexual Orientation

AB 677 requires various state departments — including the Department of Fair Employment and Housing, the Department of Industrial Relations, EDD, and the Labor and Workforce Development Agency — to collect voluntary, self-identified information pertaining to sexual orientation and gender identity in the regular course of collecting other types of demographic data. These labor agencies must comply as early as possible, but no later than July 1, 2019. State entities may also collect the information from a third-party, including a private employer, that already provides aggregated data to a state department.

LGBT Rights for Long-Term Care Facility Residents

SB 219 enacts the Lesbian, Gay, Bisexual, and Transgender (LGBT) Long-Term Care Facility Resident’s Bill of Rights, strengthening anti-discrimination protections for LGBT individuals living in long-term care facilities. Under the bill, it is unlawful for a facility or facility staff to take certain actions because of a person’s actual or perceived sexual orientation, gender identity, gender expression or HIV status, such as:

Willfully and repeatedly fail to use a resident’s preferred name or pronoun;

Deny admission to a long-term care facility;

Transfer or refuse to transfer a resident within a facility or to another facility;

Evict or discharge a resident from a facility;

Prohibit residents from wearing clothes that are allowed for any other resident; and

Restrict the right to associate with other residents.

Facilities are required to post a notice about the protections (the exact language of the notice is specified in the bill). SB 219 also imposes recordkeeping requirements on facilities.

Human Trafficking

Certain California businesses are required by law to post a notice containing information about human trafficking and slavery. AB 260 extends the list of covered businesses that must post the notice to include hotels, motels and bed and breakfast inns, as defined.

And SB 225 requires that the human trafficking notice include not only the number individuals can call for services and support, but also the new number for those who wish to send text messages.

SB 225 makes other revisions to the model notice, which the California Department of Justice will complete. Businesses will not be required to post the updated model notice until on or after January 1, 2019. Monetary penalties for not complying with the notice requirement range from $500 for the first offense to $1,000 for each subsequent offense.

Anti-Discrimination Protections for Veterans

AB 1710 expands the current protections for members of the armed services by prohibiting discrimination in all “terms, conditions, or privileges” of employment. This legislation conforms state law to the federal Uniformed Services Employment and Reemployment Rights Act (USERRA) by protecting servicemembers from hostile work environments in their civilian jobs.

Health Facilities: Whistleblower Protections​Existing law makes it illegal to discriminate or retaliate against an employee who raises a concern about conditions at a health facility. AB 1102 increases the maximum fine for a willful violation of these provisions from $20,000 to $75,000.

As always, employers with questions about new and existing employment laws should seek the advice of legal counsel. The Oxnard Chamber strives to keep its members informed about new laws that could affect their business operations.

The 2017 legislative year was a busy one for the California Chamber of Commerce and other employer advocates.

Nevertheless, CalChamber policy advocates, together with members, allied associations and local chambers of commerce, stopped many harmful proposals, won amendments to remove damaging provisions in other proposals, and helped pass bills to invest in the state’s future.

In 2017, the CalChamber tracked 214 California bills, stopping 91 (including 25 job killers), securing amendments to 31 (16 of which were signed into law) and backing 16 bills that were signed into law.

Job KillersStrong advocacy by the CalChamber, members, local chambers of commerce and allied employers prevented all but three job killer bills from passing the Legislature.

On his last day to act on legislation, the Governor vetoed AB 1209 (Gonzalez Fletcher; D-San Diego), which would have imposed a new data collection mandate on California employers and exposed them to public criticism and costly litigation.

​CalChamber identified AB 1209 as a job killer because it would have: created a false impression of wage discrimination or unequal pay where none exists, therefore subjecting employers to unfair public criticism; exposed employers to significant litigation costs to defend against meritless claims; and imposed costs on the Secretary of State to collect and post the data.

AB 1209 required employers with 500 or more employees in California to collect data on the difference in mean and median salaries paid to men and women in the same job title or classification and submit the information to the Secretary of State. The state then would have posted the company’s salary information—with the company name attached—on a publicly accessible website.

Session HighlightsFollowing are highlights from the entire legislative session. For a list of all bills sent to the Governor this year, see the Final Status Report on Major Business Bills.Labor and Employment​As usual, labor matters were among the hardest fought issues on the CalChamber agenda. The 2018 new laws will include:

• Legislation mandating that small businesses with as few as 20 employees provide 12 weeks of parental baby bonding leave to employees (SB 63; Jackson; D-Santa Barbara). If an employee takes this leave, the new law prohibits an employer from refusing to maintain and pay for health care coverage. Employers can be sued for failing to provide the leave, failing to return the employee to the same or comparable position after the leave, failing to maintain benefits while the employee is out on leave or taking adverse employment action against an employee who uses the leave. More information on SB 63 appeared in the October 12 special Alert.

• A new law banning employers from asking about, or considering, a job applicant’s prior salary history in determining whether to hire the applicant or how much to pay the applicant. An employer can also be penalized for not providing a pay scale for the position upon demand (AB 168; Eggman; D-Stockton).

• Ban-the-box legislation prohibiting employers with five or more employees from asking about criminal history information on job applications and from inquiring about, or considering, conviction history information at any time before a conditional offer of employment has been made (AB 1008; McCarty; D-Sacramento).

​• The Immigrant Worker Protection Act that shields workers from immigration enforcement while on the job. The legislation prohibits employers from providing federal immigration enforcement agents access to a business without a warrant and requires employers to notify employees of Form I-9 inspections performed by federal immigration enforcement officials (AB 450; Chiu; D-San Francisco).

Transportation and Infrastructure

Legislation signed earlier this year with CalChamber support will provide long-term revenues to fix roads, freeways and bridges across California and put more dollars toward transit and safety (SB 1; Beall; D-San Jose). The fuel tax hikes will go into effect on November 1.

​Climate Change

Also signed earlier this year was CalChamber-backed legislation to reduce costs of complying with the state’s climate change program. AB 398 (E. Garcia; D-Coachella)provides regulatory certainty for California businesses, helps maintain a healthy economy and provides the least costly path to achieving California’s climate goals by extending the cap-and-trade program to 2030 by providing market mechanisms rather than government command-and-control.

A related constitutional amendment, ACA 1 (Mayes; R-Yucca Valley), will—if approved by voters—set up a legislative “check-up” of the cap-and-trade program in 2024, including a review of spending and the effectiveness of the program in reducing greenhouse gas emissions.

Health Care

A proposal to create a new single-payer health care system, SB 562 (Lara; D-Bell Gardens), stalled this year after facing opposition from the CalChamber and others who highlighted problems with a government-run, multibillion-dollar system financed by an unspecified and undeveloped “revenue plan.” The issue is likely to be revived in 2018.

Housing

Several CalChamber-supported bills were part of a package of legislation signed by the Governor to ease the housing crisis. The CalChamber-backed bills either hold local governments accountable for meeting the housing elements of their plans or aim to combat the “not in my backyard” (NIMBY) resistance that can stall needed housing projects. The bills are AB 678 (Bocanegra; D-Pacoima), SB 167 (Skinner; D-Berkeley) and AB 1515 (Daly; D-Anaheim).

This is our second in a series of articles about new employment laws for 2018. This week we are looking at wage and hour issues.

A few new California laws affect employers' wage-and-hour laws obligations in 2018, some of which are related to enforcement.

Keep in mind that on January 1, 2018, the state minimum wage increases to $10.50 per hour for employers with 25 or fewer employees and to $11 per hour for employers with 26 or more employees. This is not a new law — SB 3 was signed in 2016, and this is the next mandatory increase. If you have employees in cities and counties that may have adopted local minimum wages ordinances, be sure you comply with those as well. (Example: Malibu has a local minimum wage ordinance.)

Investigate an employer — even without a complaint from an employee — when the Labor Commissioner suspects retaliation or discrimination against a worker during a wage claim or other investigation.

Obtain a court order prohibiting an employer from firing or disciplining an employee even before completing its investigation or determining retaliation has occurred. The court order can be obtained upon a showing of “reasonable cause,” which is a much lower burden of proof than is currently required. An employer may still discipline or fire an employee for conduct unrelated to the retaliation claim.

Penalize an employer up to $100 per day (maximum of $20,000) for:

Willful refusal to comply with an order to reinstate or otherwise restore an employee or former employee; or

Refusal to comply with an order to post a notice to employees or stop the alleged conduct.

The bill also creates a new citation process for alleged violations.

Increased Liability for Construction Contractors

For certain private construction contracts entered into after January 1, 2018, AB 1701 imposes liability onto the general contractor for any unpaid wages, benefits or contributions that a subcontractor owes to a laborer who performed work under the contract. The bill authorizes the general contractor to request payroll records from subcontractors to confirm that wages and other benefits or contributions are being made.

Barbering and Cosmetology

Two new laws affect barbering and cosmetology employers and licensees.

SB 490 clarifies that workers licensed under the Barbering and Cosmetology Act (BCA) can agree to a percentage or flat-sum commission in addition to a base hourly rate if certain conditions are met:

The employee is licensed under the BCA and is providing services for which a license is required;

The employee is paid a regular base hourly rate of at least two times the state minimum wage for all hours worked in addition to commissions paid;

The commission wages are paid at least twice each calendar month on a day designated in advance by the employer as the regular payday; and

Rest and recovery periods are paid at no less than the regular base hourly rate.

AB 326 requires additional licensee training.

Existing law requires Board of Barbering and Cosmetology schools to include information on basic labor laws as part of the health and safety curriculum for licensees. AB 326 requires that, beginning July 1, 2019, the course includes information on physical and sexual assault awareness to ensure licensees are aware of abuse their clients may be experiencing (such as domestic violence, human trafficking, sexual assault and elder abuse).

As always, employers with questions about new and existing employment laws should seek the advice of legal counsel. The Oxnard Chamber strives to keep its members informed about new laws that could affect their business operations.

It’s a crazy world we live in! Most of our lives leave digital footprints everywhere we go. With massive data breaches (Equifax) being more common than not, how can we protect our identity and the identities of our customers?

We’re going to find out at the December 14 Knowledge & Networking lunch where Identity Theft expert, Maureen Rodriguez, will address this important topic.

Maureen E. Rodriguez is a Deputy City Attorney assigned to the criminal branch of the Los Angeles City Attorney’s Office since 1998. She has specialized in prosecuting Identity Theft and Fraud cases since 2005. In addition to trial work, she has provided training for law enforcement and prosecutors throughout California and in Nevada, Florida, Arizona, and Washington. She has developed training programs that have been presented for prosecutors in the California District Attorneys Association (CDAA), and for law enforcement through Police Officer Standards and Training (POST), LAPD and CHP training sessions.

Maureen presents Identity Theft Awareness programs to community groups throughout the San Fernando Valley. DCA Rodriguez has contributed to television research documentaries on fraud issues. Additionally, she has authored articles that have been published in CDAA’s quarterly journal, “Prosecutor’s Brief”, and in the “REOMAC National Training Magazine” (Real Estate Owned Managers Association).

Prior to employment with the Los Angeles City Attorney’s Office, Ms. Rodriguez obtained law enforcement experience with El Dorado Sheriff’s Department where she was assigned as a Patrol Sergeant. She gained financial fraud investigation experience while serving as a Vice President at BankAmerica Corporate Security.

The December 14 Knowledge & Networking Lunch will be held at the Residence Inn at River Ridge, 2101 W. Vineyard Avenue. The event begins and noon and will conclude by 1:30. Advance reservations are required and can be made via the Chamber’s website (www.oxnardchamber.org) or by calling the office at 805-983-6118. Members’ reservations are discounted if made by Monday, December 11.

On November 9 the Oxnard Chamber convened policy experts to have a frank discussion about the healthcare system in our state and our country. Featured at the Oxnard Business Outlook were Loren Kaye, President of the California Foundation for Commerce and Education; Darren Lee, President and CEO of St. John’s Hospitals; Kelly Bruno, President and CEO of than National Health Foundation; Dale Villani, Chief Executive Officer of Gold Coast Health Plan; and Dr. Adam Cavallero of UCLA Health.

While there was a lot of discussion about different healthcare delivery systems and preventative care programs, there is no magic answer to how we tear up the existing model nor what to replace it with.

As you may recall there is a piece of legislation (SB 562 The Healthy California Act) active in Sacramento that would provide healthcare for all. The price for this model is estimated to be more than $400 billion (Yes, with a “B”). For perspective, the State budget for all expenditures—not just health care, but also K-12 and higher education, social services, transportation, corrections and every other expense category—totals less than half of that amount. The bill was held in committee in 2017 because it did not contain a funding mechanism.

I like to look at what other states and countries are doing that provide a better return on the healthcare dollars invested. I recently ran across an article in Fox&Hounds Daily with some very interesting data I wanted to share:

The United States currently spends nearly 18% of its Gross Domestic Product (GDP) on healthcare but ranks 41st in life expectancy, 55th in infant mortality, and 49th in maternal mortality. By comparison, the vast majority of industrialized countries—including the United Kingdom, France, Canada, and Japan—spend between 9 and 12 percent of their respective GDPs on healthcare while achieving substantially better healthcare outcomes.

But Singapore is crushing them all both in terms of quality and cost. It can not only boast of being the only country in the top five in infant mortality, life expectancy, and maternal mortality—but also of spending just 4.7 percent per year of its GDP on healthcare. Singapore delivers the world’s best healthcare outcomes for 70 percent less than what the United States is spending and about 50 to 60 percent less than what the single-payer countries are spending.

The Singapore model is particularly intriguing because major parts of its system have been implemented here in the U.S. with great success, including by major private sector employers like Whole Foods Markets and by government-sector innovators such as the State of Indiana with its Healthy Indiana Plan.

The Singapore model is based on three key principles: choice, responsibility, and security. Some of the Singapore model—for example requiring everyone to deposit 7% of their income in a Health Savings Account—would be difficult to implement in the U.S., but innovators like Whole Foods Markets have implemented effective substitutes here in the United States.

Since it doesn’t appear we can build a better system on our own, why in the world do we not look to others who are delivering quality healthcare at an affordable price?